Opinion
No. COA12–755.
2013-04-2
STATE of North Carolina v. Soyer Lewis MOLL.
Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State. Glover & Petersen, P.A., by Ann B. Petersen, for Defendant.
Appeal by defendant from judgment entered 10 November 2011 by Judge Phyllis M. Gorham in Onslow County Superior Court. Heard in the Court of Appeals 10 December 2012. Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State. Glover & Petersen, P.A., by Ann B. Petersen, for Defendant.
ERVIN, Judge.
Defendant Soyer Lewis Moll appeals from a judgment sentencing him to life imprisonment without the possibility of parole for the first degree murder of his wife, Virginia Tillman Moll. On appeal, Defendant contends that the trial court erred by refusing to allow his mental health expert to testify concerning Defendant's ability to formulate and carry out plans and to understand the consequences of his behavior at the time of the alleged murder and by sustaining the State's objection to testimony questioning the credibility of one of the State's witnesses. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and applicable law, we conclude that Defendant is not entitled to relief from the trial court's judgment.
I. Factual Background
A. Substantive Facts
1. State's Evidence
Ms. Moll married Defendant in September of 2008, when she was 19 years old and seven months pregnant with Defendant's child. Ms. Moll gave birth to their daughter, Naomi, on 10 November 2008, which was one month prior to her twentieth birthday. At the time of Ms. Moll's death, Defendant, Ms. Moll, and Naomi lived in a separate living area contained within the residence of Defendant's parents. Ms. Moll did not get along well with Defendant's mother and wanted to live elsewhere.
On the night of 28 October 2009, Ms. Moll and her sister, Amanda Tillman, spoke over the telephone to discuss their plans for Halloween. During that conversation, Ms. Moll told Ms. Tillman that she and Defendant had gotten into an argument stemming from the fact that Ms. Moll wanted the family to have its own house and objected to continuing to live with Defendant's parents any longer.
According to his statement to investigating officers, Defendant awoke on the following morning to hear his daughter crying. After changing Naomi's diaper, Defendant informed Ms. Moll that he was going to take the child to the babysitter. Instead, Defendant dropped Naomi off at the home of a friend, Sadie Caulder, who was not Naomi's normal babysitter. Defendant acted in this manner because he believed that Naomi's usual babysitter was sympathetic to Ms. Moll. Upon leaving Naomi with Ms. Caulder, Defendant falsely stated that he would like Ms. Caulder to watch Naomi because he was going to see a divorce attorney with Ms. Moll.
When Defendant returned home, Ms. Moll asked him why they could not move out of Defendant's parents' home and get their own residence. After Defendant told his wife that they did not have the money to do as she preferred, Ms. Moll questioned his desire to leave his mother. Having made this statement, Ms. Moll stormed out of the house, returned with a number of trash bags, and began putting her clothes into the bags. Although Defendant tried several times to wrap his arms around her, Ms. Moll lashed out angrily, scratched Defendant on his arm and neck, and told Defendant that she needed to get away. At that point, Defendant grabbed Ms. Moll again and held her tightly until he blacked out. When he regained consciousness, Defendant was “spooning” on the floor with Ms. Moll. Upon realizing that Ms. Moll was dead, he put a red rope around her neck to make it appear that someone had killed her and carried Ms. Moll in his arms to the place where he intended to bury her.
After burying Ms. Moll, Defendant returned to the house, finished packing Ms. Moll's clothes, and drove to his place of employment. While there, Defendant sent a text message, which was time-stamped 11:55 a.m., from Ms. Moll's phone to his own, stating that Ms. Moll was leaving Defendant to stay with her mother. After sending that message, Defendant removed the battery from Ms. Moll's phone, snapped it in half, and placed both the phone and Ms. Moll's clothes into a dumpster.
At that point, Defendant went inside his place of employment and told his manager that Ms. Moll had left him and their daughter. In addition, Defendant went to his parents' workplace and told them the same thing. After showing his parents the text message, Defendant picked up Naomi from Ms. Caulder's home. When Ms. Caulder noticed the scratches on Defendant's body, he told her that, although he and Ms. Moll had gotten into an argument, their disagreement had not been a serious one. After his parents returned home, Defendant's mother told him to photograph his scratches in case he needed to go to court.
Defendant's mother, however, testified that she suggested that Defendant photograph his wounds when he stopped by their place of employment.
Toby Winn, who was romantically involved with Ms. Caulder, provided an account of the events surrounding Ms. Moll's death that differed in some respects from that contained in Defendant's written statement to investigating officers. According to Mr. Winn, he and Chad Penrod were high school friends of Defendant who lived together at the residence of Mr. Penrod's parents. On the day of Ms. Moll's death, Mr. Penrod sent a text message to Tammy McCalom, who was the mother of a friend, to see if he and Mr. Winn could come by her residence to play video games. Ms. McCalom agreed to let Mr. Winn and Mr. Penrod come to her house and picked up both boys.
Earlier that morning, Mr. Winn had received a phone call from Ms. Caulder, who informed him that Defendant had told her that Ms. Moll was leaving Defendant. After speaking with Ms. Caulder, Mr. Winn agreed to check on Defendant and see how he was doing. As a result, while en route to Ms. McCalom's residence, Mr. Winn asked to be dropped off at Defendant's home. After agreeing to honor this request, Ms. McCalom left Mr. Winn at a location near Defendant's home at around 10:30 a.m.
Upon arriving at Defendant's residence, Mr. Winn knocked on the door for ten minutes without obtaining any answer. However, Mr. Winn decided to check the rear of the house before leaving. When he did so, Mr. Winn saw Defendant putting Ms. Moll's dead body into a cart. Mr. Winn noticed that there was a white rope around Ms. Moll's neck and that her body was covered with a blue tarp. At that point, Defendant told Mr. Winn that he had killed Ms. Moll and had Mr. Winn accompany him down a swampy path to a location where he intended to bury her body. After Defendant experienced difficulties getting Ms. Moll's body into the hole in which he intended to bury her, he kicked and shoved Ms. Moll's body into the hole using a considerable amount of force.
Although Mr. Winn described seeing the blue tarp and claimed to have disposed of it, investigating officers were unable to locate such an object anywhere, including in the dumpster where Defendant put Ms. Moll's clothes, during their investigation into the circumstances surrounding Ms. Moll's death.
After Defendant and Mr. Winn returned to Defendant's home, Defendant began packing a suitcase in order to make it appear that Ms. Moll had left. Defendant told Mr. Winn that he hoped that a receipt from an earlier trip to Subway would provide him with an alibi. In addition, Mr. Winn observed Defendant sending a text message from Ms. Moll's phone to his own number. Mr. Winn did not come forward and inform investigating officers about what he had observed because he was afraid of Defendant and was not aware that Defendant had been arrested. However, Mr. Winn spoke with investigating officers after he learned of Defendant's arrest.
On the day of Ms. Moll's death, Ms. Tillman tried to contact her sister at approximately 10:00 a.m., but got no response. Although she tried to call Defendant on the following day, he did not answer. On Halloween, Defendant called Ms. Tillman and told her that Ms. Moll had left and that she had sent him a text message indicating that he could keep Naomi because Ms. Moll no longer wanted her. Ms. Tillman thought that Defendant's version of events was very odd because Ms. Moll had always wanted a family and loved Naomi. Subsequently, Defendant told Ms. Tillman a number of inconsistent stories about Ms. Moll's disappearance. On 1 November 2009, after numerous unsuccessful attempts to reach her sister, Ms. Tillman reported that Ms. Moll was missing. Upon learning that Ms. Tillman had taken this step, Defendant told Ms. Tillman that he was upset at her failure to give him the opportunity to make the initial report of Ms. Moll's disappearance and that he was concerned that investigating officers would suspect him of having killed Ms. Moll.
Although Defendant saw Ms. Caulder on each of two days following Ms. Moll's death, he never mentioned Ms. Moll's departure. In the first written statement that Defendant provided to investigating officers between 4 and 6 November 2009, Defendant stated that Ms. Moll had expressed irritation at him for not allowing the family to move to a new home, packed her clothes to leave, scratched Defendant when he attempted to prevent her from departing, left Defendant and Naomi at home, and sent him a text message to the effect that she was not coming back. On the morning of 10 November 2009, Defendant provided a second written statement to investigating officers. In his second statement, Defendant said that, following Ms. Moll's departure, he dropped Naomi off at Ms. Caulder's home after lying to Ms. Caulder about his need to see a divorce lawyer in order to induce her to keep Naomi. After getting something to eat at Subway in order to try and calm his stomach, Defendant returned home briefly. However, upon receiving a text message from Ms. Moll to the effect that she was not going to return, Defendant became upset, started driving around, and eventually wound up talking with his manager at work, to whom he showed Ms. Moll's text message. Once he left his place of employment, Defendant went to his parents' workplace, repeated his story about Ms. Moll's departure, and showed them the text message that he had received from Ms. Moll, then picked Naomi up and returned home. Around 5:00 p.m. on the same day Defendant made this second statement, Defendant finally acknowledged that Ms. Moll was dead, admitted that he had sent the text message that he claimed to have received from Ms. Moll, and showed investigating officers where her body was buried.
Dr. Deborah Radisch, North Carolina's Chief Medical Examiner, performed an autopsy on Ms. Moll's body. Dr. Radisch noted that a red rope ligature, to which a wooden stake was attached, had been tied tightly around Ms. Moll's neck. In Dr. Radisch's opinion, Ms. Moll had died from asphyxia resulting from ligature strangulation.
2. Defense Evidence
Defendant's parents testified that Defendant was not a violent person. Defendant's mother described her son as being “emotionally tore up” when he came to see her on the day of Ms. Moll's murder. According to Defendant's father, Defendant never even raised his voice while arguing with his wife. In addition, Defendant's father testified that there was no blue tarp at his home on the day that Ms. Moll was killed, contradicting Mr. Winn's testimony, and that Defendant had considerable hand strength as the result of his prior work history.
According to Dr. James Hilkey, an expert in forensic psychology, Defendant's family was law-abiding and adhered to traditional values. Although Defendant was very intelligent, Dr. Hilkey believed that Defendant was bipolar and had an unstable personality disorder with dependent personality traits. Individuals with diagnoses like Defendant's tend to fall in love quickly and to exhibit disturbing behaviors when the resulting relationship is threatened, including acting out aggressively or impulsively. Dr. Hilkey testified that a person in Defendant's condition was likely to experience disassociation, in which a stressful experience would cause the affected individual to have a break from reality that could last for as long as several weeks, leaving the individual without any memory of what occurred during that interval. In Dr. Hilkey's opinion, when Defendant learned that Ms. Moll was leaving him, he experienced a period of disorganized thinking and a sense of intense panic. In other words, Dr. Hilkey believed that, at the time that he killed Ms. Moll, Defendant snapped, lost contact with reality, and went into a dissociative state, during which he did not know what he was doing and which left him with no memory of the actual killing. As a result, Dr. Hilkey believed that Defendant lacked the mental capacity to form a specific intent to kill.
B. Procedural Facts
A warrant for arrest charging Defendant with murdering Ms. Moll was issued on 10 November 2009. On 12 January 2010, the Onslow County grand jury returned a bill of indictment charging Defendant with the first degree murder of Ms. Moll. The charge against Defendant came on for trial before the trial court and a jury at the 7 November 2011 criminal session of Onslow County Superior Court. On 10 November 2011, the jury returned a verdict convicting Defendant of first degree murder. At the conclusion of the ensuing sentencing hearing, the trial court entered a judgment sentencing Defendant to life imprisonment without the possibility of parole. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
A. Testimony of Defendant's Mental Health Expert
In his initial challenge to the trial court's judgment, Defendant contends that the trial court erred by sustaining the State's objection to expert testimony concerning Defendant's ability to formulate and carry out a plan and to think about the consequences of what he was doing at the time of Ms. Moll's death. As a result of his failure to preserve this claim for appellate review, Defendant is not entitled to relief from the trial court's judgment on the basis of this contention.
Although the parties have debated the standard under which we should review Defendant's challenge to the trial court's ruling, we need not resolve that issue given our conclusion that Defendant has failed to preserve this issue for appellate review.
At trial, the following events occurred during the direct examination of Defendant's mental health expert:
Q Dr. Hilkey, ... [c]an you tell the jury what the term diminished capacity means?
A Diminished capacity is a legal decision that means that a person [who] committed [ ] a crime did not have the ability to form the specific intent to commit murder. And there are a couple of components that go into the idea of forming the specific intent. One is to be able to plan, and there are several parts of planning. As I understand the law, and correct me if I'm incorrect in this, but planning can be
[PROSECUTOR]: Objection.
THE COURT: Sustained.
Q Continue on about planning, please.
[PROSECUTOR]: Well, objection.
THE COURT: I sustained that objection.
[DEFENSE]: Okay.
Q Is there another component of diminished capacity?
A Well, whether the person has the ability to think about what they're doing and the consequences of their behavior. People who qualify for this impression may have done some planning, but have not
[PROSECUTOR]: Objection.
THE COURT: Sustained.
After the trial court sustained the State's objections to these portions of Dr. Hilkey's testimony, defense counsel continued his direct examination without ever attempting to make an offer of proof demonstrating the content of the testimony that Dr. Hilkey would have provided in the absence of the trial court's rulings.
“A showing of the essential content or substance of the witness's testimony is required before this Court can determine whether the error in excluding evidence is prejudicial.” State v.. Satterfield, 300 N.C. 621, 628, 268 S.E.2d 510, 515–16 (1980) (quoting Currence v. Hardin, 296 N.C. 95, 100, 249 S.E.2d 387, 390 (1978)) (quotation marks omitted), disapproved on other grounds, State v. Roper, 328 N.C. 337, 361, n. 1, 402 S.E.2d 600, 614,cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 232 (1991). In the absence of such a showing, “it is impossible on appellate review to determine whether exclusion of this testimony was prejudicial error.” Id. at 628, 268 S.E.2d at 515. As a result, “ ‘[w]hen evidence is excluded, the record must sufficiently show what the purport of the evidence would have been, or the propriety of the exclusion will not be reviewed on appeal.’ “ Id. at 628, 268 S.E.2d at 516 (quoting 1 Stansbury, N.C. Evidence § 26 (Brandis rev.1973) (alterations in original)).
Although Defendant argues in his brief that, “[i]f Dr. Hilkey had been allowed to testify about his opinions of [Defendant's] capacity [to] plan and carry out plans and to think about the consequences of his actions, there is a reasonable possibility that a different result would have been reached by the jury,” we have no basis for assessing the validity of Defendant's argument given the facts that he failed to make any offer of proof at trial concerning the essential content or substance of Dr. Hilkey's testimony, and that the record does not otherwise establish the substance of the testimony that Dr. Hilkey would have delivered had the trial court not sustained the State's objection. Simply put, we have no basis for determining what Dr. Hilkey would have said about the subjects in question in the absence of the trial court's rulings. As a result, Defendant is not entitled to relief from the trial court's judgment on the basis of the challenged trial court rulings.
As an aside, although the trial court precluded Defendant from eliciting testimony concerning the legal issues surrounding a criminal defendant's ability to plan, Dr. Hilkey clearly testified that Defendant's mental capacity was diminished to such an extent that he lacked the ability to form the specific intent necessary to support a first degree murder conviction.
B. Testimony of Chad Penrod
Secondly, Defendant argues that the trial court committed prejudicial error by refusing to allow Mr. Penrod to testify to his opinion that Mr. Winn was not a truthful person. In support of this assertion, Defendant contends that the sole issue at trial was Defendant's state of mind, that Mr. Winn's testimony tended to show that Defendant acted in a “cool state of blood” when he killed Ms. Moll, and that the admission of Mr. Penrod's testimony concerning Mr. Winn's truthfulness would have cast doubt on the credibility of the very harmful testimony that Mr. Winn delivered before the jury. We do not find Defendant's argument persuasive.
At trial, Mr. Penrod testified on direct examination as follows:
Q Okay. How long, prior to today, have you known Toby Winn?
A Since high school. So somewhere around four to six years.
Q Four to six years, total?
A Yes.
Q And he has lived with you?
A Yes, sir.
Q And how often have you seen him, at the time when he was not living with you?
A Since the day all this happened, I have not seen him. Before that, it was every day.
Q Every day?
A Yes, sir.
Q Do you know his reputation in the community in which he resides for being truthful, honest?
A From what I have known Toby, he [is] not a very honest person. He lies about things left and right. He
[PROSECUTOR]: Objection.
THE COURT: Sustained.
Q I get to ask you what you base that opinion on.
[PROSECUTOR]: Objection.
THE COURT: I'm going to sustain that.
Q But that's your opinion, is that correct, Chad?
A Yes, sir.
Q Okay.
[DEFENSE]: Your Honor, I have no further questions. Thank you, Mr. Penrod.
According to Defendant, the trial court's rulings contravened N.C. Gen.Stat. § 8C–1, Rule 608(a), which provides that “[t]he credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion as provided in [N.C. Gen.Stat. § 8C–1,] Rule 405(a), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” According to well-established North Carolina law, in the event that a witness “ha[s] formed an opinion based on personal knowledge,” such a foundation is “all that [is] needed in order to allow [the witness] to testify as to her opinion of [another witness'] character for truth and veracity.” State v. Morrison, 84 N.C.App. 41, 49, 351 S.E.2d 810, 815,disc. review denied,319 N.C. 408, 354 S.E.2d 724 (1987); see also State v. Valdez–Hernendez, 184 N.C.App. 344, 349, 646 S.E.2d 579, 583 (2007) (stating that, in order to obtain the admission of evidence “as to a witness's character for truthfulness or untruthfulness, ... Defendant needed to show only that each of the three witnesses had personal knowledge of the complaining witness and that the three had consequently formed an opinion as to her character for truthfulness or untruthfulness”). Assuming, without in any way deciding, that the trial court erred by sustaining the State's objections to the challenged portions of Mr. Penrod's testimony and that this alleged error was properly preserved for purposes of appellate review, we conclude that any such error did not prejudice Defendant's chances for a more favorable outcome at trial.
.N.C. Gen.Stat. § 8C–1, Rule 405 provides that, “[i]n all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion,” with “inquiry [being allowed] into relevant specific instances of conduct” on cross-examination.
Although the parties disagree about the standard which we should utilize in reviewing the correctness of the trial court's rulings, we need not resolve that question given our determination that any error that the trial court might have committed was harmless.
Ordinarily, “[a] defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” N.C. Gen.Stat. § 15A–1443(a). In his brief, Defendant contends, in reliance upon Morrison, 84 N.C.App. at 49, 351 S.E.2d at 815 (stating that, “[i]n order to find such constitutional error harmless, we must find it harmless beyond a reasonable doubt”) (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710–11 (1967), and State v. Heard, 285 N.C. 167, 172, 203 S .E.2d 826, 829 (1974)), that the trial court's alleged error constituted a deprivation of his right to compulsory process, so that the appropriate standard for determining whether the trial court's rulings constituted prejudicial error is that applicable to constitutional violations. However, a more recent decision of this Court clearly utilizes the standard enunciated in N.C. Gen.Stat. § 15A–1443(a) for the purpose of analyzing the prejudicial effect of the erroneous exclusion of evidence in violation of N.C. Gen.Stat. § 8C–1, Rule 608(a). Valdez–Hernendez, 184 N.C.App. at 350, 646 S.E.2d at 583–84 (holding that there was “a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial” as the result of the exclusion of evidence from two law enforcement officers and a court interpreter to the effect that the prosecuting witness had a character for untruthfulness) (quoting N.C. Gen.Stat. § 15A–1443(a)). Although utilizing the standard for harmlessness set out in N.C. Gen.Stat. § 15A–1443(a) rather than the standard applicable to constitutional violations set out in N.C. Gen.Stat. § 15A–1443(b) would be consistent with the fact that the legal principles upon which Defendant relies in this instance are matters of state statutory, rather than state or federal constitutional law, and the general principle that where, as here, “a constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal,” State v. Hunter, 305 N .C. 106, 112, 286 S.E.2d 535, 539 (1982), we need not resolve this dispute concerning the appropriate prejudice standard for use in this instance given our belief that any error committed by the trial court was harmless under either potentially applicable standard.
In seeking to persuade us that Defendant should receive a new trial based upon the trial court's alleged error, Defendant argues that the trial court's ruling precluded the jury from considering any portion of Mr. Penrod's testimony given its preliminary instruction that “jurors must disregard the question and the answer” when an objection is sustained. See State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 535 (2004) (stating that the “law presumes that jurors follow the court's instructions”) (citing Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713, 723 (1979) (plurality opinion)), cert. denied sub nom. Queen v. North Carolina, 544 U.S. 909, 125 S.Ct. 1600, 161 L.Ed.2d 285 (2005). Although the trial court's decision to sustain an objection lodged by the State immediately after Mr. Penrod testified that, “[f]rom what I have known Toby, he [is] not a very honest person;” that “[h]e lies about things left and right;” and that “[h]e—“ could conceivably have been understood, in light of the preliminary instruction upon which Defendant relies, as an instruction to disregard the testimony which Mr. Penrod delivered immediately prior to the trial court's ruling, we note that, almost immediately thereafter, Mr. Penrod answered in the affirmative to a question posed by Defendant's trial counsel to the effect that “[b]ut that's your opinion, is that correct, Chad?” It is “well settled that the admission of testimony over objection ordinarily is harmless error when testimony of the same import is theretofore or thereafter introduced without objection.” State v.. Blount, 20 N.C.App. 448, 450, 201 S.E.2d 566, 568 (citing State v. Jenerett, 281 N.C. 81, 90, 187 S.E.2d 735, 741 (1972); State v. Stepney, 280 N.C. 306, 316, 185 S.E.2d 844, 851 (1972)), cert. denied, 285 N.C. 86, 203 S.E.2d 59 (1974). Since the “that's” mentioned in the question posed by Defendant's trial counsel was clearly a reference to Mr. Penrod's opinion that Mr. Winn was not an “honest person” and “lies right and left,” the jury clearly had the benefit of Mr. Penrod's opinion that Mr. Winn had a poor character for truthfulness during its deliberations. As a result, given that the same or similar evidence was admitted without objection from the State, any error that the trial court may have committed by sustaining the State's objections to Mr. Penrod's testimony concerning Mr. Winn's lack of veracity was clearly harmless, regardless of the prejudice standard used to make that determination.
III. Conclusion
Thus, for the reasons set forth above, we hold that neither of Defendant's challenges to the trial court's judgment have merit. As a result, the trial court's judgment should, and hereby does, remain undisturbed.
NO ERROR. Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).